S.A. No. 1989 of 1915.
1. The plaintiff a Sthanee, granted a kanom of the properties in dispute for Rs. 71-6-11 to the 1st defendant in the year 1873--Exhibit D. In 1892 that kanom was renewed, the amount being fixed at Rs. 3,363-0-9. Exhibit A is the counterpart executed by the 1st defendant in that year. He assigned Exhibit A to the defendants 2 and 3. The present suit was brought for redemption. The main question related to the value of improvements. The Subordinate Judge awarded to the 2nd and 3rd defendants Rs. 19,009-3-7 which was increased by the District Judge in Appeal to Rs. 43,552 5-10. Both parties have preferred second appeals. We shall first deal with the plaintiff's appeal. In considering the questions argued before us the contention of Mr, Ananthakrishna Aiyar, who appeared for the tenant, that whatever may be the value of the second appeal, our powers are governed by Section 100 of the Code of Civil Procedure, has to be borne in mind.
2. Before dealing with the question of improvements, we may at once dispose of that portion of the appeal which complains against the finding that a portion of item 5 does not belong to the plaintiff. The learned Advocate-General while drawing our attention to certain flaws in the reasoning of the courts below rightly conceded that there is legal evidence to support the finding. We must therefore dismiss the second appeal with costs so far as this item is concerned.
3. The main contest centred upon the question whether the defendants are entitled to any compensation for improvements in respect of items 1 and 2. The Subordinate Judge very summarily disposed of this question on the ground that as items 1 and 2 were nilams and as there was no agreement in Exhibits A and B to pay compensation for them the defendants were not entitled to any. In appeal, the District Judge, although he dealt with the question more fully, has in our opinion, wrongly thrown the onus of proof upon the plaintiff. Ordinarily a tenant who claims compensation for improvements is bound to prove that he has improved the property and that he has spent money in making the improvements. Admittedly no account showing the amounts spent on the improvements has been produced. Mr. Ananthakrishna Aiyar contended that if the tenant can show that the income derivable from the demised property has increased since the date of the kanom, that would be enough to entitle the tenant to claim compensation for the improvements. It may be conceded that under the Malabar Compensation for Tenants Improvements Act the jenmi and the tenant are regarded as co-partners in respect of the additional value imparted to the land by the labour of or by. the expenditure of money by, the tenant. In this respect the Malabar tenant is placed in a more advantageous position than tenants elsewhere. Nevertheless, prima facie the tenant must prove certain things. Under Section 3 Clause 3 of Act I of 1900, improvement has been defined to be ' any work or product of a work which adds to the value of the holding, is suitable to it, and consistent with the purpose for which the holding was let, mortgaged, or occupied.' Consequently the tenant must show that he has done work which has added to the value of the holding, that the said work is suitable and that it is also consistent with the object with which he obtained the kanom. As regards the 1st of these requirements, there can be no doubt in this case. It is not suggested that the improvements made were not consistent with the kanom granted by the jenmi. The tenant has still to prove that an additional value has been imparted to the holding by his work and that the work which he executed was suitable to the holding. If we turn to Section 5, it is clear that the burden is upon the tenant to prove before he claims compensation that he has made the improvements or that his predecessor in interest has made them. The learned vakil for the tenant contended with reference to Section 5 that if there were improvements on the land the tenant in possession is enti led to their value at the time of ejectment, if any person other than the landlord had made the improvements. We are unable to agree with this contention. Clause (1) of Section 5 makes it clear that the tenant against whom the decree in ejectment is passed is only entitled to the improvements made either by himself or by his predecessor in interest. The definition of the word tenant in the apt is not against this view. If Thupran v. Mamad Kasim Suit (1912) 17 I.C. 433 holds otherwise we are unable to agree with it. In the present case there are very strong circumstances why the tenant should be called upon to establish his case. In Exhibit A, the counter part of the lease executed by the 1st defendant, he stated that 'excepting items 1 and 2 which have been entered as nilams in the prior kanom deeds as the value of the reclamations of the properties which I have reclaimed at my expense in respect of the other schedule properties by converting them into double crop lands has not been now examined and estimated and settled you have agreed to give me etc.' This Clause in the agreement suggests on the facts of it that the 1st defendant agreed in 1892 that he had made no improvements in respect of items 1 and 2. It may be that this presumption against him may be rebutted, and that he may be able to show that since that time improvements have been made by him. In that view, the evidence given by him will have to be examined to find out to what extent he has improved the properties and to what compensation he is entitled in consequence of those improvements The District Judge has not addressed himself to this question. He has not realised the importance of admissions contained in Exhibit A; the decision of the Judicial Committee in Chandra Kunwar v. Chandri Narpat Singh I.L.R. (1916) A. 184shows that the admissions of the parties should not be lightly ignored. It is true as pointed out by Mr. Ananthakrishna Aiyar that the word Nilam in Exhibit A does not necessarily show that it was a double crop land. It certainly means arable land. As to whether the 1st defendant has expended money and labour in converting it into double crop land, that is a matter which must depend upon the evidence given in the case. As we said before, Mr. Ananthakrishna Aiyar's suggestion that whoever might have improved the land, although he be a person between whom and the 1st defendant there is absolu:ely no connection, still he is entitled before ejectment to claim the value of the improvements, is one which we are unable to accept. Therefore, it was the duty of the 1st defendant to have adduced evidence to prove his case.
4. There is another circumstance which also throws the burden upon the 1st defendant. In the written statement filed by him, he stated that though in the demise of 1872 items 1 and 2 were entered as nilams, all such lands were left uncultivated, that some of the plaint lands were forest lands and were not frequented by people generally. Here again he seems to admit that a great portion of items 1 and 2 were cultivable lands. Before the first commissioner, the statements made by him show that he did not lay claim to having made considerable improvements upon these items. In Exhibit 3 B he stated as regards the major portion of item 1 that they were originally single crop lands and that they were dug and their level lowered and converted into double crop lands. As regards the other portions he, contended that some of them were reclaimed from items 5 and others from item 6. On the other hand, the plaintiff's kariasthan contended that-all of them were nilams. There seems to have been no suggestion before the commissioner that the lands were waste and that they were converted into single or double crop lands by the exertion of the 1st defendant. As regards item 2, the contention before the 1st commissioner tended to negative any suggestion that a major portion of that item was reclaimed by the defendant and converted into double crop lands. Under these circumstances, it was the duty of the 1st defendant to have adduced sufficient and clear evidence to establish his right to compensation. The District Judge lays much stress upon the fact that the income at the time of the demise was only 212 1/2 paras of paddy whereas in a suit brought by the plaintiff for use and occupation he estimated the income at almost 10 times that quantity, We do not think that the increase in the income is any criterion of increased value having been imparted to the lands by the tenant. It has to be remembered in the first place that Komu Menon the 1st defendant was a confidential agent of the Sthanee, and in all likelihood a favourable rent was fixed as against him by his master. The increase in the net income might be due to a number of other circumstances. The decision in Thiruvatiyil Vattath v. Vishnu Barathikal (1914) 28 I.C. 389 was quoted as showing that if an increase in the income is proved, the presumption is that the tenant has improved the land. In our opinion the proposition has been too broadly stated. The District Judge has drawn attention to Exhibits 293 and 296 as showing that some improvements were made in a portion of item 1. In the first place, we are not satisfied that A, is really a portion of item I. Even granting for arguments sake that it is so, it does not follow that because on a portion of item 1, some improvements were made, that is any indication that the whole of that property has similarly been improved. A, is less than 2 acres in extent. One other circumstance we must mention before passing away from items 1 and 2 and it is this : the commissioners who inspected the place and submitted their report have not given any relevant evidence in the case. There seems to be an impression in Malabar that a report of the commissioner is equivalent to a judgment which is binding upon the parties. Ordinarily the commissioner's report should be supplemented by the evidence which he gives in the case. In the present instance, the commissioner only embodies the statements made by the parties and does not give his own opinion on thier contentions. Consequently it is practically of no use. On the whole, we have come to the conclusion that the procedure adopted by the District Judge in throwing the onus upon the plaintiff, in not taking into account the admissions contained in Exhibit A, in attaching artificial importance to the increase in the net income and in not considering the statements made before the first commissioner vitiate the judgment altogether. We have therefore resolved to set aside his judgment in so far as it awards compensation for items 1 and 2 and to remand the appeal to him for fresh disposal. He will be at liberty to examine the commissioners, who have sent in their reports with a view to ascertain whether any improvements were made by the 1st defendant; he can also consider any other evidence on the record to which his attention may be drawn by the parties on this question.
5. As regards item 3 we must dismiss the appeal with costs. There is no evidence connecting this item with the decree Exhibit 252, nor is there any evidence that compensation was estimated by the decree or concluded by a contract between the parties.
6. As regards items 4, 5 and 6 the Subordinate Judge fixed a particular sum as the amount of ' compensation payable to the tenant. The District Judge in appeal relied upon a notification published by the Government in February l910 regarding valuation. It is true that t he decree in ejectment was passed in December 1909. Strictly speaking, the notification of the Government is not evidence of the value of paddy in December 1909. But there can be no question that before the notification was issued inquiries must have been instituted, and having regard to the nearness of time, we see no reason to differ from the conclusion of the District Judge that the value of paddy in December 1909 was the same as that contained in the notification of the Government) in February 1910. We must dismiss the appeal so far as these items are concerned with costs.
7. As regards items 7 and 8, the position is this : prior to 1872. one Muneappa was the tenant of the jenmi in respect of these items, After the first defendant obtained the decrce, he and the jenmi sued Muneappa for redemption in 1882. A decree was passed directing the plaintiffs to pay Muneappa Es 3,000 and odd. At the time of the renewal in 1892, the 1st defendant was asked to pay this sum to Muneappa and to tack on that amount to his mortgage. The learned Advocate-General contended that this contract comes within the proviso to Section 19 of Act I of 1990, as the amount due was settled by a contract in writing and registered. Mr. Ananthakrishna Aiyar on the other hand, argued that it is Section 7 of the Act of 1887 that applies to the contract. It is not necessary to decide whether Section 19 of the Act I of 1900 is not really retrospective and consequently as the improvements were claimed under the new Act, whether the question should not be decided with reference to that section. Even granting that Section 7 of the Act of 1887 applies, we are unable to hold that the settlement as to compensation come to in 1892 is not binding on the parties. That contract does not take away or limit the right of a tenant. It only settles the amount due under the mortgage at the time of the renewal. We, therefore, fail to see how this provision is obnoxious to Section 7. Further we are clear that that section deals only with contracts which limit the right of the tenant to make improvements after the date of the contract. Of course, we are bound by the decision of the Full Bench in Kunhaloor Puthiaveetil Rayarappa Atioti v. Vathukollath Parkum Punniserri Kelappa Kurup (1916) 32 M.L.J. 110 to read the word ' and ' as meaning ' or. ' Even in that view, what the legislature prohibits the tenant from binding himself by are, (a) contracts not to make any improvements, and (6) contracts settling the amount of the possible improvements in advance. The intention was, not to prejudice the rights of the tenants by an apriori agreement without reference to the rights that may come into existence by the tenants working the property in a husbandlike manner. To this exception was added by the Act of 1900 by Section 19, which enabled the parties to settle the amount of compensation by a document in writing and registered.
8. The learned vakil for the respondent drew our attention to Uthunganakath Avuthala v. Thazhatharayil Kunhali I. L.R. (1897) M.. 435. The two learned Judges who composed that Bench took two different views of Section 7. Mr. Justice Subramania Aiyar held that all contracts whether it related to improvements effected before the date of the contract or after were within the mischief of the section. Mr. Justice Davies held that all improvements which were effected after January 1886 were within the section whether they were before or after the contract, With all deference we are unable to agree with either view. We are not at liberty, as Mr. Justice Subramania Aiyar did, to embark upon a conjecture as to the policy of the legislature where the language of the section is plain and unambiguous. Prima facie, every person is entitled to enter into a contraet settling the accounts between him and another, or for settling the differences between them. If this right of the freedon of contract is to be taken away, it must be by express and clear words; and we find nothing in Section 7 which takes away the effect of a settlement as to compensation for improvements effected before the date of the contract. As regards the view taken by Mr. Justice Davies, we do not find any words in the section to justify the interpretation placed by the learned Judges.
9. We must therefore reverse the decree of the District Judge as regards the compensation payable for these items. If any new improvemants were made since 1892 or if the tenant has done anything to guard, maintain or improve the improvements existing on that date, he will be entitled to compensation in respect of them. Otherwise the tenant is only entitled to the amount mentioned in Exhibit A, The District Judge must now assess any fresh compensation that may be claimed in the light of the above observations. This must be done by the evidence on the record. Costs to be provided for in the revised decree.
S.A. No. 1884 of 1915.